Ex Parte Kurylo

Patent Trial and Appeal Board

Mar 24, 2015

11731077 (P.T.A.B. Mar. 24, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/731,077 03/31/2007 John K. Kurylo JKK-101A 7844
7590 03/24/2015
Deirdra M Meagher
Suite 600
121 State Hwy 31
Flemington, NJ 08822
EXAMINER
WIDHALM, ANGELA M
ART UNIT PAPER NUMBER
2452
MAIL DATE DELIVERY MODE
03/24/2015 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOHN K. KURYLO
____________

Appeal 2013-001234
Application 11/731,077
Technology Center 2400
____________

Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF CASE
Introduction
This is an appeal under 35 U.S.C. § 134(a) involving claims 21–40.
Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Prior Art
The Examiner relies upon the following prior art in rejecting the
claims on appeal.
Kirmuss US 2003/0095688 A1 May 22, 2003
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Basir US 2003/0154009 A1 Aug. 14, 2003
Hutzel US 7,293,888 B2 Nov. 13, 2007
filed June 3, 2005
D’Agostino US 7,893,958 B1 Feb. 22, 2011
filed Apr. 3, 2006
Rejections
The Examiner rejects claims 21–40 under 35 U.S.C. § 112, ¶ 2, as
indefinite. Office Action, Feb. 14, 2012 (“Final Action”), pp. 2–3.
The Examiner rejects claims 21–40 under 35 U.S.C. § 103(a) as
unpatentable over Basir, D’Agostino, Hutzel, and Kirmuss. Final Action
3–12.
INDEFINITENESS REJECTION
Appellant “requests to hold the aforesaid claims in abeyance
regarding the 112 rejections for purposes of the Appeal.” Br. 6.
Accordingly, the indefiniteness rejection of claims 21–40 is sustained.
OBVIOUSNESS REJECTION
Independent Claims 21 and 33
Appellant presents a multitude of undeveloped arguments for
independent claims 21 and 33 collectively. Id. at 6–11.
Appellant principally argues that the proposed combination of prior
art features unreasonably omits Basir’s 360-degree “fish-eye” camera. Id. at
6–8. The argument is not persuasive; particularly insofar as merely asserting
— i.e., failing to present supporting reason or evidence — that the fish-eye
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camera is an indispensable feature of Basir’s system. See In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997) (“An assertion of what seems to follow
from common experience is just attorney argument and not the kind of
factual evidence that is required to rebut a prima facie case[.]” (citations
omitted)). Basir teaches that the fish-eye camera singularly achieves an
“occupant, vehicle, and surroundings” views as a 360-degree view; whereas
prior systems provided only the “vehicle” and “surroundings” and did so via
a plurality of intrusive cameras. Basir ¶¶ 7–8, 12. Basir’s preference for the
fish-eye camera and 360-degree view does not constitute a teaching away,
for example, from implementing one or more of the three views via
respective camera attached to “at least one . . . of a dashboard, a rear view
mirror, a visor, a windshield, and a windshield frame” (claims 21 and 33).
See DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314,
1326 (Fed. Cir. 2009) (“A reference does not teach away […] if it merely
expresses a general preference for an alternative invention[.]”).
Appellant also argues that neither Basir nor Kirmuss teach “engine
operation sensing means recognizing when an engine of a motor vehicle is
running and when it is not running” (claims 21 and 33).
1
Br. 7 (addressing

1
Claim 21 arguably recites means-plus-function language that, if indeed
invoking 35 U.S.C. § 112, ¶ 6, the Examiner should have interpreted in view
of corresponding structures disclosed by the Specification. See In re
Donaldson Co., 16 F.3d 1189, 1195 (Fed. Cir. 1994) (en banc). Because
Appellant has not argued that the rejection is accordingly improper, we have
not addressed whether claim 21’s “means” features invoke § 112, ¶ 6 and in
turn require corresponding structure disclosed by the Specification. See In
re Baxter Travenol Labs, 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the
function of this court to examine the claims in greater detail than argued by
an appellant, looking for nonobvious distinctions over the prior art.”). We

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Basir), 11–13 (addressing Kirmuss). Appellant cursorily addresses Basir;
merely alleging “Basir does not include an engine operation sensing means
recognizing when an engine of a motor vehicle is running and when it is not
running.” Br. 7. As for Kirmuss, Appellant explains why (albeit with
reference to dependent claims 22, 24, 30, and 34) the cited ignition sensor
cannot be reasonably understood as detecting whether an engine is running.
Br. 11–13. We agree that Kirmuss’ ignition sensor does not detect whether
an engine is running, but rather (as explained by Appellant) detects merely
whether an ignition switch is on and in turn merely whether the system
electronics should be on as well. Kirmuss ¶ 149 (“In this way, one avoids
the unnecessary draining of a vehicle’s battery by constantly running and
powering cameras when the system is not otherwise being used. This
procedure also ensures that no human intervention is required to turn on and
off cameras.”). However, the argument is not persuasive; particularly
insofar as failing to address Basir. As reflected above, the Examiner cites
Basir and Kirmuss as collectively suggesting the “engine operation sensing
means” (claims 21 and 33). Final Action 5, 8. Namely, the Examiner cites
Basir’s data capture module and Kirmuss’ ignition sensor. Id. at 5 (citing
Basir ¶¶ 33–34) and 8 (citing Kirmuss’ “ignition control line sense”). A
skilled artisan would reasonably infer that Basir’s data capture module, by

nonetheless note, assuming arguendo, claim 21’s “means” features invoke
§ 112, ¶ 6, the Specification does not appear to present corresponding
structures that would patentably distinguish the invention over the collective
teachings of Basir, D’Agostino, Hutzel, and Kirmuss. See e.g., Spec. ¶¶ 7,
23 (disclosing ubiquitous structures).
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way of sensing engine diagnostics and parameters (Basir ¶ 34), detects at
least whether an engine is running.
Appellant also argues: “D’Agostino lacks features of the present
invention that [involve] continuous recording, looping and stop activation
based on a set time period after impact.” Br. 9. The argument is not
persuasive; particularly insofar as neglecting that D’Agostino is not cited as
teaching or suggesting the asserted features. Final Action 8 (addressing
D’Agostino). Rather, D’Agostino is cited as suggesting the claimed battery
power and transparent housing. Id.
Appellant also argues: “One skilled in the art of videoing
continuously would not turn to the art of videoing only eccentric events for
information on how to refine features of Basir. Thus, there is no motivation
to combine the art of Basir and D’Agostino.” Br. 9. The argument is not
persuasive; particularly insofar as failing to present supporting reason or
evidence as to the skill in the art.
Appellant also argues: “Hutzel does not disclose a looping video
camera including means to record audio and video through a windshield of a
motor vehicle.” Br. 9. The argument is not persuasive; particularly insofar
as neglecting that Hutzel is not cited as teaching or suggesting the asserted
features. Final Action 8 (addressing Hutzel). Rather, Hutzel is cited as
suggesting the claimed wireless connectivity. Id.
Appellant also argues: “Hutzel is non-analogous art. . . . Hutzel
relates to rearview mirrors for events within a vehicle. Basir relates to video
cameras for recording inside and outside a vehicle.” Br. 10. The argument
is not persuasive, for each of three reasons. First, the argument fails to
present supporting reason or evidence as to the skill in the art. Second, the
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argument fails to address the established test for analogous arts. See In re
Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (“Two separate tests define the
scope of analogous prior art: . . .”). Third, as reflected by the test (see
Bigio), the principle inquiry is whether the claimed invention and reference
are directed to analogous arts; not whether a rejection’s applied references
are directed to analogous arts of one another. Id.
Appellant also argues:
Hutzel relates to rearview mirrors for events within a vehicle.
One skilled in the art of videoing inside and outside a vehicle
would not turn to the art of videoing only in the inside of the
vehicle events for information on communications. Thus, there
is no motivation to combine the art of Basir, D’Agostino and
Hutzel.
Br. 10. The argument is not persuasive; particularly insofar as failing to
present supporting reason or evidence as to the skill in the art.
For the foregoing reasons, the rejection of claims 21 and 33 is
sustained.
Dependent Claims 22, 24, 30, and 34
Dependent claims 22, 30, and 34 add: “said engine operation sensing
means includes direct connection to an engine operation connection of said
motor vehicle.” Dependent claim 24 adds: “said engine operation sensing
means is a current sensing means.”
Appellant argues that, contrary to the Examiner’s findings, Kirmuss’
ignition sensor does not include a current sensor (claim 24) requiring a
“direct connection to an engine operation connection” (claims 22, 30, and
34). Br. 11. As discussed supra, at pages 4–5, we agree with Appellant’s
characterization of the ignition sensor. We in turn do not agree with the
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Examiner’s finding that the ignition sensor includes or suggests a current
sensor for detecting a running engine, much less includes a direct
connection to an engine operation connection.
As also discussed supra, Basir’s data capture module is an engine
operation sensing means for detecting engine diagnostics and parameters.
However, Basir does not specify the detected engine diagnostics and
parameters. We, therefore, do not find, with respect to the module, an
inference or suggestion to include therein a current sensor or direct
connection to an engine operation connection.
Accordingly, the rejection of claims 22, 24, 30, and 34 is not
sustained.
Dependent Claims 25 and 37
Dependent claims 25 and 37 add: “said video camera is a digital
camera.” Appellant argues: “[Kirmuss’ paragraph 178] does not state that
the Kirmuss camera is digital, nor is this required for wireless transmission
(Kirmuss refers in paragraphs [0134] and [0135] to monitors using
NTSC/PAL, which is an analog wireless standard).” Br. 12. The argument
is not persuasive; particularly insofar as neglecting that Basir and Hutzel —
not Kirmuss — are respectively cited as teaching a digital camera and
wireless connectivity. Final Action 9 (addressing Basir), 7 (addressing
Hutzel).
Accordingly, the rejection of claims 25 and 37 is sustained.
Dependent Claim 36
Dependent claim 36 adds: “said video camera includes at least one
feature selected from the group consisting of a cigarette-lighter-connectable
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power cord and a serial port for downloading stored information to a
computer.” Appellant argues: “[T]he Kirmuss invention has its own power
supply that receives power with a voltage of 10.5VDC to 38VDC. Kirmuss
power supply, which has self-resetting fuses, is distinct from a cigarette
lighter.” Br. 13. The argument is not persuasive; particularly insofar as
neglecting that Hutzel — not Kirmuss — is cited as teaching a cigarette
lighter power supply. Final Action 11.
Accordingly, the rejection of claim 36 is sustained.
Dependent Claim 40
Dependent claim 36 adds: “said means connected to said video
camera for attachment thereto [includes] at least one motor vehicle
component selected from the group consisting of a dashboard, a rear view
mirror, a visor, a windshield, and a windshield frame is connected to one of
said video camera and said housing.” Appellant argues merely that “none of
the cited prior art relates to a visor.” Br. 13. The argument is not
persuasive, for each of two reasons. First, claim 40 does not require a visor;
but rather requires “at least one . . . of a dashboard, a rear view mirror, a
visor, a windshield, and a windshield frame” (emphasis added). Second, the
argument constitutes a mere assertion of patentability.
Accordingly, the rejection of claim 40 is sustained.
CONCLUSIONS
The indefiniteness rejection of claims 21–40 is sustained.
The obviousness rejection of claims 21, 23, 25–29, 31–33, and 35–40
is sustained.
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The obviousness rejection of claims 22, 24, 30, and 34 is not
sustained.

DECISION
The Examiner’s decision rejecting claims 21–40 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED
RWK